Feb 22, 2018

By Tyler Freiberger

To much international acclaim, earlier this year Iceland introduced a new equal pay act to fight discrimination against protected classes, particularly historically underpaid women. The introduction of the Act made the cover of Time magazine and garnered wide-spread attention on the 24-hour news networks’ cycles. While the historic Act may warrant such coverage, for domestic industry insiders the celebration of Iceland’s legislative prioritization of gender equality may ring a bit hollow, as the United States’ passed the Equal Pay Act over half a century ago. And, as Centre has discussed in the past, pay discrimination has been illegal ever since.

Earlier this month, the U.S. Department of Labor (“DOL”) made a related show of force on the issue through its Office of Federal Contract Compliance Programs (“OFCCP”), issuing a thousand letters to government contractors advising that it may audit contractors for compliance with non-discrimination/affirmative action obligations, including matters of pay equity. Clearly, the global march towards gender equality moves forward, but before we rush toward an “Icelandic model,” there are complicated issues to address.

First, there are clear conceptual differences between Iceland’s new model and the United States’ system. The “big move” of the Icelandic law is to demand that employers prove they are not paying women less than men; in contrast, the American system places that burden on the employee attempting to prove their case. Despite that variance in burden of proof, U.S. contractors reading these audit letters from DOL are likely not celebrating an easy road to compliance. In fact, with a recent groundbreaking study out of Stanford, it is clear employers can have a very thin rope to walk when attempting to eliminate a purported “pay gap.”

American anti-discrimination laws are based upon the principle that, assuming an absence of discrimination all people will be equally represented and compensated in the workforce. Therefore, if a class of people are underrepresented/under-compensated in a workforce, something is wrong in the employer’s process. Yet, the law is clear that employers cannot make employment decisions based on gender, even if that decision is directly made to further affirmative action goals – i.e., “reverse” discrimination remains illegal even in an affirmative action context. Instead, the employer is meant to study its workforce, identify inequalities, and identify what gaps exist in its process that lead to inequality. Perhaps it is where the employer is recruiting, how it qualifies candidates, who it chooses to make hiring decisions, or what criteria the employer uses to advance current employees.  The hundreds of government contractors recently receiving the OFCCP letters will be performing exactly these analyses.

Imagine then, if a hard look at your workforce reflected men earning 7% more an hour than women for doing the exact same job; how do you react? It is expressly unlawful to purposely increase women’s pay 7% more an hour, so necessarily employers must identify what in their processes has caused the inequality.  For context, this is the scenario Uber finds itself in after the aforementioned Stanford study. Upon examining over a million Uber rides in the Chicago area, researchers noted a substantial pay gap between male and female drivers, while “the average of rider ratings of drivers is statistically indistinguishable between genders.” In sum, women are making less money, while performing the same job, with equal customer satisfaction, and being paid through a computer algorithm where driving X distance at Y time results in a computer-generated rate.

Discrimination, right? Well, maybe not. What makes the results so interesting is that under the Uber model, riders and drivers are assigned without gender preference; and, simultaneously riders are fined if they reject the driver pre-pickup. This essentially creates a double-blind system of assigning work. Preference for a male driver over a female driver – i.e. canceling a female driver’s pickup – awards the driver and punishes the rider. And, the study shows no (or at most very little) such driver selecting preference. Rather, the data revealed that the largest cause of the pay gap to be arising from the specific (and varying) times men and women decide to drive.

Other than amending its scale to pay women more per ride than men, how might we (or Iceland) assert that Uber solve this problem? And is there even a “problem” to solve?

If you are an American company sweating over a similar gap in your workforce, we can offer some relief. While American employers should always be exploring these questions, and considering solutions, the “unknown” currently goes in the employer’s favor. In the United States, employees still must present evidence isolating and identifying the discrete element in the hiring or compensation processes that allegedly produces the discriminatory outcome. See EEOC v. Freeman, 961 F. Supp. 2d 783 (D. Md. 2013), aff’d in part sub nom. E.E.O.C. v. Freeman, 778 F.3d 463 (4th Cir. 2015). Still, under either the U.S. or Iceland model, you do not want to be the last to know.


About the Author:

Tyler Freiberger Headshot | Centre Law & Consulting in Tysons, VA Tyler Freiberger
Associate Attorney

Tyler Freiberger is an associate attorney at Centre Law & Consulting primarily focusing on employment law and litigation. He has successfully litigated employment issues before the EEOC, MSPB, local counties human rights commissions, the United States D.C. District Court, Maryland District Court, and the Eastern District of Virginia.


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